Does your personal representative know where your ORIGINAL Will is located
and, for that matter, do YOU know where it is? The answer to these questions
became more important based on a recent Florida case: Brennan v. Estate of
Brennan, 40 So.3d 894 (Fla. 5th DCA 2010). In this case, the appellate court
ruled a person seeking to probate a lost Will who presents a correct copy of
said Will must provide testimony of one disinterested witness to prove the
execution and content of the Will. Otherwise, the court will presume that the
owner of the Will voluntarily destroyed the Will with the intent to revoke same.
This presumption, if not overcome, would result in either: (1) a prior original Will
being resurrected (if such a Will can be found) pursuant to the doctrine of
relative revocation; or (2) the decedent being deemed to have died without a
Will (what we call “intestate”). In the event that you should die without a Will, the
State of Florida has “written” a Will for you, controlling who inherits your assets.
The Brennan case reiterates a point I am always sure to share with my clients
regarding important documents…
You should always keep a current list of assets such as your accounts, life
insurance policies, CD locations, and such. It is unlikely that your Personal
Representative (“P.R.”) will be acutely familiar with your accounts. A list
advising where to find your assets will greatly assist your P.R. in carrying out
his or her duties. Finally, should you choose to keep a safe deposit box for
the storage of your important documents, your P.R. needs to: (1) be advised
as to the location of the box key; and (2) be able to access said box as a
Signor. Otherwise, a court order is necessary to gain access to the box, taking
additional time and funds to procure. Further, if no key can be found, the
additional cost for drilling the lock will be incurred as well.
So, to recap: (1) keep your Original Will in a safe location; (2) ensure your P.R.
knows the location of your important documents and assets; and (3) ensure
your P.R. can gain access to said documents and assets, should the need